Welcome to the latest edition of Disease Brief from Kennedys Occupational Disease Unit.

Transcription

1 16 October 2013 Disease Brief Welcome to the latest edition of Disease Brief from Kennedys Occupational Disease Unit. In addition to a round up of recent news relating to disease claims, we comment on the consultation to speed up the settlement of mesothelioma claims in England and Wales, which closed on 2 October Following a long line of consultations aimed at implementing the proposals for civil justice reform, it focuses on new legal procedures to improve the system for this type of claim. We include a link to Kennedys response to the consultation. The Mesothelioma Bill completed its House of Lords stages on 22 July 2013 and was presented to the House of Commons on 29 August Following the Government reshuffle, Lord Freud - the primary sponsor of the Bill - has remained in place. The Bill allows for the establishment of a payment scheme for sufferers of mesothelioma and their families who are unable to trace employers liability policies. It proposes that the costs of the scheme are met by insurers. Whilst the date for the Bill s second reading debate in the House of Commons is yet to announced, it will be vital that efforts to reach a balanced agreement with the insurance industry continue. In terms of wider civil justice reforms, the Judge charged with implementing the Jackson reforms has revealed he will review parts of the legislation causing problems for lawyers. Mr Justice Ramsey will lead a review looking at the areas of concern with costs and cases management that have arisen, as well as litigation funding. The review is expected to be completed by April As always, I hope you enjoy reading this edition and welcome your feedback. Cameron Clark Partner, Occupational Disease Unit Page 1 of 12

2 Case reviews Harassment: oppressive and unacceptable behaviour PhD student fails to show that conduct of her supervisor and members of his team was in breach of s.1 Protection from Harassment Act Saha v Imperial College of Science, Technology & Medicine [ ] Implications The judgment is fact specific, but given the preponderance of evidence presented by the defence witnesses, Mr Justice Hamblen s conclusion that the conduct complained of did not amount to harassment is hardly surprising. The decision represents a helpful reminder that for a claimant to succeed in a harassment claim, they must demonstrate that the conduct complained of was oppressive and unacceptable (as opposed to simply unreasonable and unattractive) and continued over a period of time rather than being a one off matter. It is interesting to note that the Judge carefully considered the fact that the Claimant s case was not supported by any factual witnesses. From a defendant s perspective, the absence of supporting witness evidence should be a factor weighed up in deciding whether to resist a claim. Background The Claimant was a PhD student in the Division of Cell and Molecular Biology at Imperial College from October 2002 to September Her PhD supervisor up to 31 July 2004 was Dr Thierry Soldati. She claimed damages in excess of 1.5m arising from alleged harassment by Dr Soldati and members of his team. Her case was that the harassment consisted of abusive s and physical intimidation. The only witness called in support of her claim was the Claimant herself. A total of 12 witnesses were called for the defence, none of whom supported the Claimant s allegations. Members of the lab team recognised that Dr Soldati was a demanding supervisor with a direct and sometimes abrupt manner of communication. However, they did not consider that he ever bullied or harassed. Decision In dismissing the claim, Hamblen J held as follows: The Claimant had become fixated on her case. She had gone over every detail again and again, to the extent that she believed that certain incidents occurred, even when they did not. A number of the allegations were clearly fanciful. Page 2 of 12

3 There was no research misconduct, which the Claimant claimed provided the motivation for the alleged harassment. The alleged incidents which had been proved did not involve harassment. At most they involved treating the Claimant in an abrupt, peremptory and at times vexed manner. They did not involve aggressive, bullying or threatening behaviour. Had Dr Soldati continued to insist on unreasonable demands and to ignore confidentiality issues a course of conduct capable of constituting harassment might have been made out. However, he had not done so. For more information please contact: Joe McManus - j.mcmanus@kennedyslaw.com. Limitation: exposure to asbestos Collins v Secretary of State for Business Innovation and Skills and Stena Line Irish Sea Ferries Ltd [ ]. Claim for lung cancer should not proceed on limitation grounds; date of constructive knowledge considered. Implications This case applies the recent Court of Appeal decision in Johnson v Ministry of Defence [2012], where Kennedys acted for the Defendant. A claimant cannot rely on his ignorance of the cause of a medical condition if a reasonable person, faced with the same symptoms, would have sought advice in this regard at an earlier date. Background Between 1947 and 1967 the Claimant was a dockworker in the London docks. He alleged that he was exposed to asbestos whilst unloading bags of asbestos from ships. In May 2002, at the age of 77, he was diagnosed with lung cancer. His condition was thought to be terminal but treatment brought the cancer under control. He claimed that he first became aware that there might be a connection between his cancer and his exposure to asbestos when he saw an advert in the Daily Mail in July 2009 placed by his solicitors. The claim form was issued in May Page 3 of 12

4 Decision Mr Justice Nicol dismissed the claim on limitation grounds: Actual knowledge: The Claimant did not have actual knowledge of the possible link between his lung cancer and the exposure to asbestos until July 2009 when the advert was published. At the time of his diagnosis the subject of his work with asbestos was raised on at least one occasion. However, it was understandable that, at that time, attention was focussed on his prognosis and care. Constructive knowledge: The diagnosis of lung cancer was of sufficient significance that it would have prompted natural curiosity as to its cause in the mind of a reasonable man. The Claimant's past smoking was not a reason for not making inquiries about the cause of the lung cancer. A reasonable man in the Claimant s position would have known, in a general way that asbestos was hazardous to health. Allowing for "thinking time" and response time from doctors, the Claimant would have had constructive knowledge by the middle of Should limitation be extended? Nicol J refused to exercise his power under s.33 Limitation Act 1980 to extend time. Even against a background of a lengthy lapse of time before the primary limitation period expired, there would still be further prejudice to the Defendants from the Claimant s additional delay. In addition, the claim had significant weaknesses and was not for a particularly large sum. For more information please contact: Cameron Clark - c.clark@kennedys-law.com. Limitation: section 33 discretion Wartime asbestos exposure claim allowed proceeding after death of former employee - Nicholas v Ministry of Defence [ ] Implications This decision does not mean an end to limitation defences for defendants, far from it, but it reiterates that each application for relief under s.33 is determined on the merits of the particular case. View our update on raising a limitation defence: Page 4 of 12

5 Background The Claimant was the daughter of Doris Timbrell. During the war years, between 1941 and 1943, Mrs Timbrell had worked for Baxters of Blackburn assembling gas masks and fitting filters into the masks. As a result, she was exposed to asbestos. On 3 June 2004 she saw her GP with a chest infection. A subsequent x-ray revealed pleural plaques. By 2006 her condition had deteriorated. Oesphageal cancer was later diagnosed, which was unrelated to the asbestosis. She died from the cancer on 12 November 2008, aged 86. Mrs Timbrell was advised by a doctor that she could make a claim in relation to the asbestosis on about 26 August 2004, which was the agreed date of knowledge for limitation purposes. A claim form was not issued until 14 May 2012; over four years after the limitation period had expired (taking into account an agreed moratorium period). The Claimant asked the Court to exercise its discretion under s.33 Limitation Act to extend the limitation period. Subject to the limitation defence, liability and causation were admitted. Decision His Honour Judge Burrell QC, sitting as a High Court judge, held that the claim should be allowed to proceed: When considering an application under s.33, the effect of the delay on the Defendant s ability to resist the claim on the merits was of paramount importance. In this case the Defendant could not point to any prejudice as a result of the delay. The evidence showed that the decision not to issue proceedings earlier was directly related to the effects of the asbestos exposure. This caused the condition which the deceased said made her too ill and disabled to contemplate proceedings. Given her age and symptoms, that was understandable. Although there had been further delay between the death and issue of proceedings, for a large part of that time the Claimant s solicitors were pursuing the matter and the Defendant had known of the claim from June For more information please contact: Cameron Clark - c.clark@kennedys-law.com. Page 5 of 12

6 Mesothelioma: potential exposure to asbestos at school Claimant s claim fails; the chance of dust containing asbestos fibres being released into the atmosphere was minimal - Garner v Salford City Council and P McGuiness and Company Ltd [ ]. Implications In Sienkiewicz v Greif (UK) Ltd [2011] the Supreme Court considered two appeals involving cases where the Defendant was the sole known cause of exposure to asbestos dust. The extent of the exposure was very small. However, the Supreme Court found the Defendant liable in each case, on the basis that any exposure greater than de minimis constituted negligent exposure. In this latest decision, Mr Justice Keith distinguished the facts on the basis that the Claimant s exposure to asbestos dust by the Defendants was at the most very fleeting, if at all. In addition, unlike one of the cases considered in Sienkiewicz, the exposure was not in the course of her work. Whilst having sympathy for the Claimant, defendants and insurers will be reassured to see that, on the facts of this case at least, it has been accepted that a potential fleeting exposure to asbestos is not sufficient to establish liability. Background In May 2011 the Claimant, who is now aged 45, was diagnosed as suffering from mesothelioma. The only time she recalled that she might have been exposed to asbestos was when she was at school and the swimming baths next to her school were demolished. The demolition generated an enormous amount of dust to which she and other children would have been exposed when they played in the school playground. The Council owned the baths, and the demolition was carried out by the Second Defendant. The exact date of the demolition was not known, but was likely to have been between 1978 and Decision Keith J held as follows: The most likely location of any asbestos was the boiler house. The strong likelihood was that there was some lagging containing asbestos. Lagging on pipework was removed while it was still in the boiler house. The process of removing it lasted perhaps a day or two. Page 6 of 12

7 The probability was that water was used to prevent the liberation of dust when the lagging was removed and that it was hosed down, and not just sprayed, before being removed. The effect of that was that the chance of dust containing asbestos fibres being released into the atmosphere was minimal. On this basis, the claim failed. Had the lagging been removed without being soaked or sprayed beforehand, on balance it was likely that some asbestos fibres would have drifted into the playground. However, if this were the case, there was no certainty that the level of the Claimant s exposure would have exceeded the relevant control limit at the time. There was no basis for saying that the Claimant had any occupational exposure to asbestos and no other possible source of the exposure had been identified. However, that did not change the outcome. It could not be said, with the degree of likelihood which the law required, that the Claimant was exposed to asbestos when the baths were demolished. For more information please contact: Philippa Craven - p.craven@kennedyslaw.com. Noise induced hearing loss: claim fails Claimant had not shown that his mild hearing loss was noise induced - Sutton v British Telecommunications PLC [ ]. Implications This is a very useful case for defendants and their insurers. It reiterates that causation is normally key to these claims and that the claimant's medical evidence should be challenged in appropriate cases. This is particularly pertinent when the alleged noise induced hearing loss (NIHL) is only mild. Background The Claimant, aged 46, alleged that he had suffered NIHL, tinnitus and hyperacusis as the result of exposure to loud noise in the course of his work with the Defendant. He claimed that he suffered NIHL from the use of equipment including tone sets, which were used to produce and detect sounds on a line during cable changing, fault-finding and cable jointing. Page 7 of 12

8 There was no dispute that the Claimant was negligently exposed to excessive noise from his use of the tone sets. The issue was whether or not the Claimant s mild hearing loss was not or not noise induced. Decision His Honour Judge Curran QC dismissed the claim: He was unable to accept that the Claimant was an open, frank and straightforward witness on all matters of fact. For example, he deliberately minimised his motorcycling activities to the doctors because he perceived them to be unhelpful to his claim. On matters such as the existence and degree of tinnitus and hyperacusis everything depends on the truthfulness and reliability of the sufferer, since there is no means of objectively confirming the condition. The evidence of the Defendant s ENT expert, Dr Yeoh, was to be preferred to that of the Claimant s ENT expert, Mr Clayton, on every point on which they disagreed. Considering all the evidence, medical causation had not been established by the Claimant. In addition, on the balance of probabilities, the hearing loss suffered by the Claimant was not NIHL. For more information please contact: Sarah Stutchfield - s.stutchfield@kennedyslaw.com. Feature articles Occupational disease claims: market developments A round up of recent news relating to asbestos and schools, the Enterprise and Regulatory Reform Act, an HSE consultation on asbestos, reporting occupational diseases and the Welsh Asbestos Bill: Page 8 of 12

9 Asbestos and schools The Committee on Carcinogenicity, which advises the Government on cancer, has provided a report to the Department of Education. Following a two year study, the report concludes that due to the increased life expectancy of children compared to adults, there is an increased lifetime risk of mesothelioma as a result of the long latency period of the disease. The Department of Education has previously confirmed that it is committed to reviewing its policy on management of asbestos in schools in the light of this report. Enterprise and Regulatory Reform Act Section 69 of the Enterprise and Regulatory Reform Act came into force on 1 October This section makes it impossible to bring a civil claim for breach of health and safety Regulations unless a Regulation specifically provides for a civil right of action. It will apply to any claim where the breach occurs on or after 1 October Accordingly, whilst there will be a significant impact on many employers liability claims, the impact on long-tail disease claims will be limited. For more information please visit: HSE asbestos consultation The HSE has sought views on its draft revised Approved Code of Practice (ACOP) Managing and working with asbestos. This is a proposed consolidated version of two previous ACOPs. Significant changes include revisions to reflect changes to the Control of Asbestos Regulations made in The consultation aims to establish whether the changes make it easier for employers to understand and meet their legal obligations. Reporting occupational diseases On 1 October 2013 the HSE announced changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) These are intended to clarify and simplify the reporting requirements. The existing schedule detailing 47 types of industrial disease has been replaced with eight categories of reportable work-related illness: carpal tunnel syndrome, severe cramp of the hand or forearm, occupational dermatitis, hand-arm vibration syndrome, occupational asthma, tendonitis or tenosynovitis of the hand or forearm, any occupational cancer and any disease attributed to an occupational exposure to a biological agent. Page 9 of 12

10 Welsh Asbestos Bill The ABI has queried whether the provisions of the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill may fall outside the jurisdiction of the National Assembly for Wales. The Bill would create a new liability on defendants making a compensation payment to victims of asbestos-related disease. They would be required to pay for any NHS services provided in Wales as a result of the disease. The Bill had been progressing through the National Assembly but the Business Committee has agreed to postpone the Stage 3 debate until a later (unspecified) time. For more information please contact: Cameron Clark - c.clark@kennedys-law.com or Philippa Craven p.craven@kennedys-law.com Time to end LASPO mesothelioma exemption The Ministry of Justice s (MoJ) consultation on reforming mesothelioma claims in England and Wales closed on 2 October 2013 the latest consultation in a long line of proposals to streamline claims management and manage litigation costs. Included within the proposals is whether the current exemption within the LASPO Act 2012 (recoverability of CFA success fees and ATE insurance premiums) should be lifted. We argued that it should be. Mesothelioma claims are already, quite properly, afforded special treatment to ensure prompt settlement and therefore carry lower costs risks than other types of personal injury claim, especially as the only issue at stake in most cases is the level of damages. In addition, specific costs saving measures are already in place for mesothelioma cases, such as the provision of occupational and health records by the potential defendant to the potential claimant at no cost (which also applies to other disease cases) and the specially designed fast-track court procedure. Despite this fast track system for asbestos claims the uplift is 27.5 per cent for a normal CFA and 30per cent for a trade union funded claim but increasing to 100per cent if the matter proceeds to trial. This compares to (pre-jackson uplifts of) 12.5 per cent for a RTA and 25per cent (27.5 per cent if union backed) for an EL claim if settled prior to trial. The uplifts being applied to mesothelioma cases in practice do not, therefore, reflect either the level of risk which these cases carry or other types of personal injury cases where no exclusion has been applied and where liability will frequently be in dispute. Page 10 of 12

11 The other main facets of the consultation looked at introducing (i) a dedicated preaction protocol (as based on the draft produced by the Association of British Insurers) (ii) a secure online gateway for the transmission of information and (iii) a regime of fixed recoverable costs (to udnerpin the protocol). With regard to the suggesiton of a secure gateway, we acknowledge the good intention of a secure method to register information. However, it is unlikely to make a substantial difference to the existing practice of managing mesothelioma claims. Identifying a widespread failure to comply with the current disease pre-action protocol, we suggested that a dedicated protocol is unlikely to make a substantial difference to the practice of managing mesothelioma claims. We went further and suggested that a protocol (dedicated or otherwise) should address the issue where the claimant is already deceased and the claim is brought by his estate. While it is right to expedite cases where the victim is still alive, an estate claim should be no different from the normal litigation process and any other fatal accidents claim. Therefore, there should be a costs sanction on estate claimants who litigate without complying with the proposed pre-action protocol. A regime of pre-action fixed recoverable costs (FRC) would, of course, bring these claims in line with the wider civil justice reforms aimed at tackling litigation costs. Accepting, however, that most mesothelioma cases proceed to the fast-track system, the question should extend the introduction of a FRC system to mesothelioma cases which are litigated. Like Lord Justice Jackson, we believe that the saving will be significant. Not only will there be savings made from the removal of the recovery of costs ( costs of costs ) but also in relation to the claimant s solicitor not being required to time record or to retain records in the form of attendance notes to justify time spent on any given task. The main reason why a FRC regime is suitable to mesothelioma cases is because by their very nature, they represent a low adverse cost risk for the claimant (as mentioned above). Notwithstanding the terrible nature of the disease, managing mesothelioma claims can be a straightforward process. Just as market forces have required defendant firms to undertake litigated mesothelioma claims upon a fixed fee and respond by developing efficiencies to still retain profitability, there is good reason for claimant firms to adopt similar measures. When considering the factors which drive up costs, we highlighted the often lengthy and costly reports produced by experts and urged the MoJ to consider the adoption of an industry-approved model expert report template in order to control costs. This is not a unique concept but one which was adopted to process hundreds of thousands of claims under both the British Coal Vibration White Finger and Respiratory Disease schemes. Page 11 of 12

12 Such an approach could eliminate the non-essential information from these reports thus reducing the cost of the report itself and the costs of the claim in considering these reports. It is vital to keep the Jackson reforms intact to avoid a watering down of the proposals and the production of a range of anomalies. Should that occur, it would risk satellite litigation (and further cost generation) and unfairness for those claimants in an otherwise similar position to disease claimants where such an exception does not apply. We, therefore, await the Government s conclusions with interest. Kennedys consultation is available to view on the website: Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214). Page 12 of 12